1. The
present appeal has been preferred against the Judgment and Order of the Orissa
High Court dated 26.10.2005 passed in OJC Nos. 10582, 11262, 11268, 11269,
11271, 11273, 11275, 11279, 11280, 11324 & 11326 of 2000, by which the High
Court dismissed the Writ Petition filed by the State of Orissa/Appellant
against the Judgment and order of the Orissa Administrative Tribunal, Cuttack
(hereinafter called as, "the Tribunal") dated 7.4.2000 issuing direction
to the appellant to appoint all the persons whose names appeared in the panel
for the selection on the post of Junior Clerk held in 1995.

2. Facts
and circumstances giving rise to the present appeal are that in order to fill
up 15 posts of Junior Clerks in District Sonepur, applications were invited by
an advertisement dated 25.06.1995. The advertisement made it clear that number
of vacancies could be increased. The respondents applied in pursuance of the
said advertisement along with large number of persons and written examination
was held in accordance with the Orissa Ministerial Service (Method of
Recruitment to Posts of Junior Clerks in the District Offices) Rules, 1985
(hereinafter called as, "Rules, 1985").

Before
the selection process could complete, the number of vacancies were increased
from 15 to 33 and as per the requirement of Rules, 1985, a merit list of 66
candidates was published on 6.11.1995. The appointments were made on the said
posts. The respondents, whose names appeared in the merit list and could not be
offered appointment, being much below in the merit list, filed applications
before the Tribunal praying for a direction to the State to offer them
appointments. The Tribunal, vide its Judgment and Order dated 7.4.2000, came to
the conclusion that appointments were to be offered to all the candidates till
the entire select list stood exhausted.

2
Therefore, the Tribunal directed to offer appointment to all left over
candidates in the select list of 1995.

3. Being
aggrieved, the State preferred the writ petition against the said common
Judgment and order of the Tribunal in the High Court of Orissa and the High
Court, vide Judgment and order dated 26.10.2005, modified the order of the
Tribunal issuing direction to the appellants to offer appointment to those
persons who had approached the Tribunal. Hence, this appeal.

4. Sh.
Janaranjan Das, learned counsel appearing for the appellant-State, has
submitted that number of vacancies cannot be filed up over and above the number
of vacancies advertised. Once the advertised vacancies are filled up, the
selection process stands exhausted and the selection process comes to an end.
Where the Rules provide to determine the vacancy yearly, life of select list
cannot be more than one year and once the life of the select list expires, no
appointment can be offered from the panel so prepared.

The
Tribunal and the High Court committed an error issuing directions to appoint
the candidates from the unexhausted part of the 3 select list, which is not
permissible in law. Thus, the appeal deserves to be allowed.

5. Per
contra, Sh. H.P. Sahu and Sh. J.P. Mishra, learned counsel appearing for the
respondents vehemently opposed the appeal contending that if the selection is
not held in subsequent years, candidates whose names appear in the panel have
to be offered appointments. Therefore, no interference is required with the
impugned Judgment and order of the High Court. The appeal lacks merit and thus,
liable to be dismissed.

6. We
have considered the rival submissions of the learned counsel for the parties
and perused the record.

7.
Relevant Rules from Rules, 1985, which are necessary to be considered for
deciding the appeal, read as under :- "Rule 2 Definitions - In these rules
unless the context otherwise requires - ................... "Year"
means a calendar year.

Rule 3
Recruitment to the posts shall be made through direct recruitment by means of a
competitive 4 examination to be held ordinarily once in every year.

Rule 6
Notification of vacancies On the receipt of the requisite information from the
District Officers the Chairman of the Board shall notify the total number of
vacancies to the local employment exchange indicating there in the number of
reserved vacancies for the purpose of conducting the competitive examination.

Rule 11
(1) Allotment of successful candidates The Chairman of the Board shall ensure
completion of evaluation of answer papers and preparation of the list of
successful candidates who have qualified by such standards as will be decided
by him ordinarily within two months from the date of examination. The
candidates' names shall be arranged in order of merit on the basis of marks
secured by them in the examination conducted by the Board. This list of
successful candidates drawn in order of merit shall not ordinarily exceed
double the number of vacancies as determined under Rule 6.

Rule 12
The list prepared under Sub-rule (1) of Rule 11 shall remain valid for a period
of one year from the date of publication of the same or till drawal of the next
year's list, whichever is earlier.

8. If the
aforesaid relevant Rules are read together, the cumulative effect thereof comes
to that after determining the number of 5 vacancies taking into consideration
the expected vacancies, the same shall stand notified to local Employment
Exchange and advertise the same through other means. The select list, after
holding the test as required under the Rules, 1985, shall be prepared and
published, which shall contain the names of candidates, double the number of
vacancies so advertised/determined.

9. Rule
14 merely enables the State Government to relax the eligibility conditions by
recording reasons in respect of any class or categories of persons in public
interest.

10. It is
a settled legal proposition that vacancies cannot be filled up over and above
the number of vacancies advertised as "the recruitment of the candidates
in excess of the notified vacancies is a denial and deprivation of the
constitutional right under Article 14 read with Article 16(1) of the
Constitution", of those persons who acquired eligibility for the post in
question in accordance with the statutory rules subsequent to the date of
notification of vacancies. Filling up the vacancies over the notified vacancies
is neither permissible nor desirable, for the reason, that it amounts to
"improper exercise of 6 power and only in a rare and exceptional
circumstance and in emergent situation, such a rule can be deviated and such a
deviation is permissible only after adopting policy decision based on some
rational", otherwise the exercise would be arbitrary. Filling up of
vacancies over the notified vacancies amounts to filling up of future vacancies
and thus, not permissible in law. (Vide State of Bihar & Chairman, Banking
Service Recruitment Board & Ors. AIR 1996 2010 SC 932).

11. In
State of Punjab v. Raghbir Chand Sharma and Ors. AIR 2001 SC 2900, this Court
examined the case where only one post was advertised and the candidate whose
name appeared at Serial No. 1 in the select list joined the post, but
subsequently resigned. The Court rejected the contention that post can be
filled up offering the 7 appointment to the next candidate in the select list
observing as under:

"With
the appointment of the first candidate for the only post in respect of which
the consideration came to be made and select list prepared, the panel ceased to
exist and has outlived its utility and at any rate, no one else in the panel
can legitimately contend that he should have been offered appointment either in
the vacancy arising on account of the subsequent resignation of the person
appointed from the panel or any other vacancies arising subsequently."

12. In
Mukul Saikia and Ors. v. State of Assam and Ors. AIR 2009 SC 747, this Court
dealt with a similar issue and held that "if the requisition and
advertisement was only for 27 posts, the State cannot appoint more than the
number of posts advertised". The Select List "got exhausted when all
the 27 posts were filled". Thereafter, the candidates below the 27
appointed candidates have no right to claim appointment to any vacancy in
regard to which selection was not held. The "currency of Select List had
expired as soon as the number of posts advertised are filled up, therefore, the
appointments beyond the number of posts advertised would amount to filling up
future vacancies" and said course is impermissible in law.

13. A
person whose name appears in the select list does not acquire any indefeasible
right of appointment. Empanelment at the best is a condition of eligibility for
purpose of appointment and by itself does not amount to selection or create a
vested right to be appointed. The vacancies have to be filled up as per the
statutory rules and in conformity with the constitutional mandate.

Union of
India, AIR 1991 SC 1612, held that appearance of the name of a candidate in the
select list does not give him a right of appointment. Mere inclusion of
candidate's name in the select list does not confer any right to be selected,
even if some of the vacancies remain unfilled. The candidate concerned cannot
claim that he has been given a hostile discrimination. (see also Asha Kaul 9
Ors., (2009) 2 SCC 479).

15.
Select list cannot be treated as a reservoir for the purpose of appointments,
that vacancy can be filled up taking the names from that list as and when it is
so required.

It is the
settled legal proposition that no relief can be granted to the candidate if he
approaches the Court after expiry of the Select List. If the selection process
is over, select list has expired and appointments had been made, no relief can
be granted by the Court Government of National Capital Territory of Delhi &
Anr., (1999) 1 10 Commission, Trivendrum & Ors., (2007) 6 SCC 190; Deepa
Keyes Subha B. Nair & Ors. (supra).

16. The
instant case is required to be examined in view of the aforesaid settled legal
proposition. The Rules, 1985 provide for determining the number of vacancies
and holding competitive examination ordinarily once in a year. Select list
prepared so also valid for one year. In the instant case, 15 vacancies were
advertised with a clear stipulation that number of vacancies may increase. The
authorities had taken a decision to fill up 33 vacancies, thus, select list of
66 persons was prepared. It is also evident from the record that some more
appointments had been made over and above the 33 determined vacancies. Thus,
once the selection process in respect of number of vacancies so determined came
to an end, it is no more open to offer appointment to persons from the
unexhausted list. It is exclusive prerogative of the employer/State
Administration to initiate the selection process for filling up vacancies
occurred during a particular year. There may be vacancies available but for
financial constraints, the State may not be in a position to initiate the
selection 11 process for making appointments. Bonafide decision taken by the
appointing authority to leave certain vacancies unfilled, even after preparing
the select list cannot be assailed. The Courts/Tribunals have no competence to
issue direction to the State to initiate selection process to fill up the
vacancies. A candidate only has a right to be considered for appointment, when
the vacancies are advertised and selection process commences, if he possess the
requisite eligibility.

17. As
the appointments had been made as per the select list prepared in 1995 and
selection process came to an end, there was no occasion for the Tribunal to
entertain the Applications in 1997, 1998 and 1999 for the simple reason that
once the number of vacancies determined are filled, the selection process came
to an end, no further appointment could be made from 1995 panel. The purpose of
making the list of double of the vacancies determined is to offer the
appointment to the persons from the waiting list in case persons who are
offered appointment do not join. But it does not give any vested right in
favour of the candidates whose names appeared therein.

18. It
appears from the Judgment of the Tribunal that Rule 11(1) of the Rules, 1985
did not provide originally to prepare the list double the number of determined
vacancies and it was only for preparing the list containing the names equal to
the number of vacancies advertised/determined. In such a fact-situation, the
select list could have been prepared only containing 33 names i.e. equivalent
to the number of vacancies determined. In such a fact-situation, selection
process would come to an end automatically whenever 33 candidates are
appointed. However, if the appellant had prepared a list double the number of
vacancies determined, that would not create any vested right in favour of the
respondents. Thus, Tribunal committed grave error issuing direction to offer
appointments to all the left over candidates.

19. The
Tribunal held as under :- "In this case by preparing the panel far
exceeding the number of vacancies, the Rules have been violated.

For this
lapse on the part of the Collector, the candidates who have been subjected to a
rigorous selection at more than one stage, should not be
penalised.............The validity of the select list has expired long since.
Both learned counsel for the applicant and the learned Government Advocate 13
concede that no further recruitment has been conducted by the Collector,
Sonepur. During this intervening period of four years vacancies must be arisen
due to promotion, retirement, creation of new posts etc. in different
offices." (Emphasis added)

20. The
Tribunal, after recording the finding of fact that life of select list had
expired, held that as the selection could not be held in subsequent years,
thus, candidates whose names appeared in the panel should be offered
appointment by granting relaxation of Rules.

Issuance
of such a direction is not permissible in law as no appointment can be made
from the panel after expiry of the life of select list.

21. The
High Court has concluded as under :- "Here the advertisement stipulated
that there were vacancies and the vacancy position might go up.

The
select list prepared admittedly contained the names of 66 successful
candidates. A cumulative reading of Rules 6 & 11(1) of the OMS Rules, 1985
vis-`-vis the select list which contained the names of 66 successful candidates
leads to an irresistible conclusion that the number of vacancies at the time of
publication of the select list was 66. the stand of the State before this Court
is that under the impression that the select list should contain double the
number of vacancies, a list of 66 candidates was published. But then, if the
said statement is accepted, the vacancies that existed at the time of 14
publication of the select list would have been 33. But it appears that the
total number of candidates already appointed is 40.........The submission of
the State that as one year had expired from the date of publication of the
select list, the same had spent its validity cannot also be accepted. If
vacancies were available, the candidates selected but illegally not sponsored
for appointment should not suffer."

In view
of the above, the High Court directed to offer the appointment to the persons
whose names appeared in the panel and had approached the Tribunal.

22. The
aforesaid view taken by the High Court cannot be held to be in consonance with
law. More so, if the State has committed an error in preparing the merit list
containing the names of candidates double the number of vacancies determined,
that would not mean that select list has become immaterial and all those
persons whose names appeared in the list would be offered appointment even
after expiry of the life of select list.

23. In
view of the above, the Judgment and order impugned hereinabove cannot be sustained
in the eyes of law. The appeal is allowed. The Judgments and orders of the
Tribunal dated 7.4.2000 15 and the High Court dated 26.10.2005 are set aside.
No order as to costs.